12:0198(50)CA - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 -- 1983 FLRAdec CA
[ v12 p198 ]
The decision of the Authority follows:
12 FLRA No. 50 DEPARTMENT OF THE AIR FORCE GRIFFISS AIR FORCE BASE ROME, NEW YORK Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2612, AFL-CIO Charging Party Case Nos. 1-CA-384 1-CA-559 1-CA-588 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the consolidated complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other unfair labor practices, and recommended dismissal of those portion of the complaint. Thereafter, the General Counsel and the Respondent filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, /1/ the Authority hereby adopts the Judge's findings, conclusions and recommendations as modified herein. /2/ In case No. 1-CA-559, the Judge found that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute /3/ when it withheld monies from current union dues allotments of unit employees and disbursed such monies to various employees who had in the past been subjected to erroneous dues withholdings. Some of the employees had been subjected to erroneous withholding because they never had been in the bargaining unit while others had been promoted out of the unit before dues were withheld. The Judge also found in Case No. 1-CA-559 that the Respondent's withholding of dues was contrary to a portion of the parties' collective bargaining agreement which is a restatement of section 7115(a) of the Statute, /4/ and therefore violated section 7116(a)(8) of the Statute. The Authority does not agree. In Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 9 FLRA No. 48 (1982), appeal docketed, No. 82-4334 (5th Cir. Sept. 8, 1982), the Authority held that "section 7116(b) requires dues withholding authorizations to terminate when an employee has been promoted to a supervisory position outside the bargaining unit, and therefore management does not violate section 7116(a)(1) and (8) by terminating such allotments." It was further determined that "correction of an administrative error in order to comply with a statutory mandate . . . cannot itself constitute a violation of the Statute," and that "where management's compliance with the requirements of section 7115 of the Statute conflicts with the provisions of a preexisting dues withholding agreement, no violation of section 7116(a)(5) is established." Thus, based on the reasoning set forth in Goodfellow, the Authority finds, contrary to the Judge, that the Respondent's actions did not constitute violations of the Statute as alleged in Case No. 1-CA-559. In so concluding, the Authority further notes that section 7115(a) of the Statute specifically applies to dues withholding authorization of "employee(s) in an appropriate unit" rather than to employees generally. /5/ ORDER IT IS HEREBY ORDERED that the consolidated complaint in Case Nos. 1-CA-384, 1-CA-559 and 1-CA-588 be, and it hereby is, dismissed. Issued, Washington, D.C., June 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Case No.: 1-CA-384, 1-CA-559, 1-CA-588 -------------------- ALJ$ DECISION FOLLOWS -------------------- Lt. Col. Nicholas J. Angelides For the Respondent James R. Collins, Esquire For the General Counsel Mr. Keith Livermore For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg. Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et seq. Pursuant to charges filed on May 22, 1980, in Case No. 1-CA-384, November 21, 1980, in Case No. 559 and December 11, 1980, in Case No. 1-CA-588, by Local 2612, American Federation of Government Employees, AFL-CIO, (hereinafter called the Union or AFGE), a Consolidated Complaint and Notice of Hearing was issued on February 21, 1981, by the Regional Director for Region I, Federal Labor Relations Authority, Boston, Massachusetts. The Consolidated Complaint alleges, in substance, that the Department of the Air Force, Griffiss Air Force Base, Rome, New York, (hereinafter called the Air Force or Respondent), violated Sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in failing to remit to the Union on three occasions the entire amount of money withheld from employees' paychecks pursuant to dues allotments executed in accordance with Section 7115 of the Statute and disbursing instead such withheld monies to non-unit employees who in the past had had union dues improperly or erroneously deducted from their respective bi-weekly pay checks. A hearing was held in the captioned matter on July 28, 1981, in Rome, New York. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on September 28, 1981, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union has been the exclusive bargaining representative of Respondent's employees serviced by the Griffiss AFB Central Civilian Personnel Office since December 4, 1967. Excluded from the bargaining unit are, among others, firefighters, professional employees, supervisors and managerial employees. The Union and the Respondent were parties to a collective bargaining agreement which commenced on August 20, 1976, and expired on May 20, 1979. Despite the expiration of the collective bargaining agreement the parties have continued to apply its terms to their day to day labor relations' activities. Article 35 of the collective bargaining agreement entitled "Dues Withholding" provides for dues withholding from unit employees who have executed a Standard Form 1187, the government form used by employees to request and authorize bi-weekly dues deductions from their respective bi-weekly wages. Standard Form 1187 is distributed by the Union to the unit employees and returned by the Union to the Respondent after execution by the affected employee. Article 35, particularly, Sections 2 and 4, makes it clear that only unit personnel are eligible for dues withholding and that such dues withholding shall cease when the affected employee leaves the unit by transfer or promotion to a supervisory or managerial position. Section 4(j) imposes upon the Union the responsibility for "informing and educating its members concerning the voluntary program for the allotment of dues and availability of SF-1187 and the conditions for revocation of allotments". On July 5, 1978, Respondent received a memorandum from Headquarters Strategic Air Command wherein the Respondent was advised of the Federal Labor Relations Council's decision in Headquarters, XVIII Airborne Corps and Fort Bragg and AFGE, Local 1770, AFL-CIO, FLRC No. 76A-145, 1/12/78, concerning the recoupment of union dues which had erroneously been deducted from the wages of an employee who had been promoted out of the bargaining unit. /6/ Predicated upon such decision, Respondent was instructed to screen its dues withholding lists for purposes of determining whether there were any non-unit employees having dues deducted from their bi-weekly wages. If so, the non-unit employee or employees were to have their respective allotments discontinued and appropriate action was to be taken to rectify the erroneously withheld dues deductions which had in the past been routinely remitted to the Union. Pursuant to the aforementioned memorandum from Hdq. Strategic Air Command, Mr. William DeSantis, a Labor Relations Specialist at Griffiss AFB, checked the dues withholding lists and determined that during the past six years there were some 65 employees on the Union's dues withholding lists who had either never held a unit position or had been out of the unit for some time. A list of the 65 employees together with the dates they had not occupied unit positions was sent in August of 1978 to the base accounting office for calculation of the amount of dues deductions which had to be recouped. A copy of the list was also sent to the Union. Due to the fact that many of the employees' files had to be retrieved from the national record depository, the calculations concerning the amount of money to be recouped were not completed until June of 1979. On July 27, 1979, Respondent informed the Union by letter of the results of its audit. The audit revealed that some 64 employees, during the past six years, had been subjected for varying periods of time to erroneous dues deductions from their respective bi-weekly wage checks. The Union was further informed that absent a waiver from the involved employees named on an attached list, and Respondent intended to recoup from the Union the erroneous dues deductions and then reimburse the affected employees. During September of 1979, Respondent sent a letter to each of the 64 employees appearing on the list, told them of the erroneous dues deductions and asked them whether they wanted to waive or claim the amounts of money involved. Forms for waiving or claiming the erroneous dues deductions were submitted to the employees along with a letter explaining their rights. According to Mr. DeSantis, the letters prompted calls from other employees who claimed that they also had dues improperly deducted from their pay. The names of such employees were referred to the accounting office for investigation. On November 2, 1979, Respondent sent a letter to the Union wherein it informed the Union that 37 employees had opted to pursue claims for erroneous dues withholding in the total amount of $2,884 and that 20 employees had opted to waive their erroneous dues withholding in the amount of $1,253.90. The Union was further informed that replies had not been received as yet from five named employees and that two other employees had not been contacted. The letter ended with a demand that the Union remit the sum of $2,884 within ten days from the date of the letter. Subsequently, after exchanging letters concerning the claim for remittance of the erroneously withheld dues, Respondent on November 30, 1979, wrote the Union that if the Union did not remit the sum of $2,884 by December 14, 1979, it would "start action to set off the $2,884 against your (the Union's) current labor union dues withholding amounts". Shortly thereafter the Institute instituted an action in the U.S. District Court, Northern District of New York, seeing to restrain the Respondent from effecting the setoff from current union dues. In view of the pending law suit, Respondent held up further proceedings with respect to the setoff action. On September 12, 1980, several weeks after the District Court on August 27, 1980, dismissed the Union's law suit for lack of jurisdiction, Respondent, without any further notice to the Union, setoff $2,076 from dues within its possession which had been deducted from current members of the Union. On September 26, 1980, the Respondent withheld an additional $829.95 from current dues to which the Union was entitled. It appears that the setoff was done on two separate dates because the dues to which the Union were entitled did not at any one time amount to the $2,884 which the Respondent was seeking to recoup. The $2,905.95 withheld was disbursed to the employees who were the victims of the erroneous dues deductions on October 29, 1980. On December 5, 1980, Respondent withheld an additional $522.05 from the current dues held for the Union and subsequently disbursed such amount to six other employees on December 10, 1980. With regard to the December 5, 1980, withholding, the record indicates that the Union was informed by the Respondent of its contemplated action on November 26th and that the Union president requested to negotiate the matter and, in fact, submitted a proposal on December 1, 1980. /7/ No bargaining, however, was held. The record reveals that the Respondent was aware, at least as early September 29, 1980, of the September 8, 1980, decision of the Comptroller General in Fort Stewart/Hunter Army Airfield, supra, which reversed the Comptroller's earlier position and held that, in the absence of a request from an affected employee to cease withholding dues, an agency was under no obligation to subsequently take action to recoup the erroneously withheld union dues of the employee who had, for one reason or another, left the certified unit. However, Respondent opted to proceed with the recoupment which is the subject of the instant complaint on the ground that it believed that the Union had knowingly taken advantage of Respondent by submitting signed Standard Forms 1187 for employees who were not in the unit and who were not eligible to be in the unit. The record also reveals that on December 8, 1980, three days prior to December 11, 1980, the date when the charge in Case No. 1-CA-588 involving the December 5, 1980, recoupment action by the Respondent was filed with the Regional Office of the Authority, the Union filed a grievance alleging that Respondent had violated Article 35 of the contract which requires the Respondent to remit the bi-weekly dues deductions from its employees to the Union. The charge, alleges, in substance, that the unilateral change in a condition of employment, i.e. failure to remit total amount of withheld dues money without allowing impact and implementation bargaining, was violative of Sections 7116(a)(1), (5) and (8) of the Statute. Subsequently, the Respondent and the Union exchanged a number of letters concerning the grievance. Respondent took the position that the grievance was identical to the ULP charge and that the Statute prohibited the same issue from being raised in two forums. The Respondent made it clear that it would only process the grievance if the ULP was withdrawn. The Union, which of course differed with the Respondent's position, at a later date, for reasons not set forth in the record, withdrew the pending grievance. Discussion and Conclusions The General Counsel contends in his post-hearing brief that the three acts of recoupment by the Respondent violated Sections 7116(a)(5) and (1) of the Statute in that such actions amounted to both a repudiation and a patent breach of Article 35 (dues withholding) of the collective bargaining agreement. The General Counsel further contends that the three acts of recoupment constitute non-compliance with Section 7115(a) of the Statute which deals with dues withholding and as such also constitutes violations of Section 7116(a)(1) and (8). Finally, the General Counsel contends that Respondent's threat to effectuate the set-off, standing alone, is violative of Section 7116(a)(1). Respondent takes the position that the aforementioned contentions of the General Counsel are without merit and argues that it is under an obligation to recover the funds erroneously deducted from non-unit employees' wages and forwarded to the Union. Respondent further argues that further proceedings with respect to that portion of the complaint predicated upon the charge in Case No. 1-CA-588 are precluded by Section 7116(d) of the Statute. Taking the parties contentions and defenses in inverse order, I can not find, as urged by the General Counsel, that the mere notice of intention to recoup erroneously withheld union dues through the legal procedure of "set-off", standing alone, interferes with, restrains or coerces employees in the exercise of their rights accorded by the Statute to have their respective union dues withheld and forwarded to the Union. /8/ Once dues have been withheld pursuant to an appropriate dues withholding authorization, such dues belong to, and are a receivable of, the Union and like any other union asset, become subject to appropriate legal procedures, including set-off. /9/ In this latter context it is noted that in the absence of any evidence that the filing of a law suit or the institution of other legal proceedings were designed to either curtail, interfere with, or restrain legitimate union activity, the mere filing of a law suit, standing alone, is an insufficient basis for a 7116(a)(1) finding. /10/ Accordingly, in as much as the institution of a set-off appears to be tantamount to the filing of a law suit, I can not find, as urged by the General Counsel, that the giving of advanced notice of intention to take legal action, such as a set-off, amounts to coercion, restraint or interference within the meaning of Section 7116(a)(1) of the Statute and will therefore recommend that such allegation of the instant complaint be dismissed. With regard to that portion of the consolidated complaint predicated upon the charges in Case No. 1-CA-588, I find in agreement with the Respondent, that further proceedings thereon are barred by Section 7116(d) of the Statute which precludes the simultaneous processing of the same issue as a grievance and an unfair labor practice. Thus, it is noted that both the grievance which was filed on December 8, 1980, and those portions of the unfair labor practice complaint based on charges filed on December 11, 1980, rely upon the Respondent's action on or about December 5, 1980, in recouping $554.85 from the current amount of withheld union dues in Respondent's possession. Both the grievance and the unfair labor practice complaint, particularly paragraph 14(d), allege a violation of Article 35 of the collective bargaining agreement as the basis of the respective actions. /11/ Accordingly, since the gravamen of the complaint and the grievance appears to be the same, I find that the Charging Party's action in filing the grievance some three days prior to the charges (1-CA-588) underlying the unfair labor practice complaint, precludes further processing of that portion of the consolidated complaint based upon the charges in Case No. 1-CA-588, and shall therefore recommend dismissal of this aspect of the consolidated complaint. Turning now to the remainder of the consolidated complaint which is predicated upon Respondent's actions on September 12, 1980, and September 29, 1980, in withholding $2,076 and $829.95, respectively, from current union dues allotments within its possession and subsequently disbursing such monies to various employees who had in the past been subjected to erroneous dues withholding, I find that such actions by the Respondent were violative of Sections 7116(a)(1), (5) and (8) of the Statute. All parties agree that, as a general rule, Section 7115(a) of the Statute requires that upon receipt of an appropriate written authorization from a unit employee an agency must deduct the regular and periodic union dues of the employee from his bi-weekly wages and in due course remit such dues to the union. It is equally clear and I find no contention to the contrary, that the dues withholding obligation imposed upon an agency ceases to be effective when the affected employee, for one reason or another, leaves the certified unit. Both the above general rules with respect to the withholding of periodic union dues from unit employees are part and parcel of Article 35 of the current collective bargaining agreement being recognized by the parties. Article 35, in addition to setting forth the obligations imposed by Section 7115(a) of the Statute, imposes upon the Union the obligation of educating the unit employees with respect to their right to execute and/or revoke dues withholding authorizations. Although acknowledging the above obligations imposed by both the Statute and the collective bargaining agreement currently in effect, the Respondent, relying primarily upon the Federal Labor Relations Council's decision in Headquarters, XVIII Airborne Corps and Fort Bragg and AFGE, Local 1770, AFL-CIO, supra, and the Comptroller General's Decisions cited therein, takes the position that its action in recouping erroneously withheld union dues and subsequently disbursing same was not violative of Sections 7116(a)(1), (5) and (8) of the Statute. The Respondent further argues that even though there has been a change in the Comptroller General's position which was the underlying basis for the Council's decision in Fort Bragg, supra, Respondent's recoupment and disbursement activities were protected since the Union had knowingly submitted withholding authorizations from employees outside the certified unit and had failed to fulfill its obligations imposed by the collective bargaining agreement with respect to educating the employees concerning their respective rights to execute or revoke dues withholding authorizations. In the Fort Bragg case, supra, an arbitrator determined that an agency violated the collective bargaining agreement in effect when it unilaterally deducted from bi-weekly dues withholding the sum of $170.15 and subsequently disbursed such sum to an employee who had had such monies erroneously deducted in the past from his bi-weekly pay checks after he had been promoted out of the unit. The arbitrator ordered the agency to reimburse the union for the monies withheld from the current bi-weekly dues deductions within Respondent's possession. During the period that the affected employee was subjected to the erroneous dues deductions, he received Statements of Earnings and Leave indicating that his checkoff was still in effect. The employee, however, made no effort to revoke his checkoff or resign from the union and continued to enjoy a number of benefits conferred upon rank and file union members in good standing. After being informed of the error, the employee did not request a refund of the dues, either from the agency or from the union. Upon receiving a petition for review of the arbitrator's award in Fort Bragg, the Federal Labor Relations Council submitted the matter to the Comptroller General's Office and requested a decision as to whether the arbitrator's award violated applicable law. On December 8, 1977, in Case No. B-180095 the Comptroller issued its decision wherein it concluded that its earlier decision in Aberdeen Proving Ground (APG), B-180095, October 1, 1974, and Reconsideration of APG, 54 Comp.Gen. 921, (1975) was controlling and, accordingly, found that the Agency was under an obligation to recoup erroneously withheld union dues and disburse same to the affected employee. In line with such conclusion, the Comptroller found the arbitrator's award to be violative of applicable law and regulation. The Council, after quoting the Comptroller General's opinion, in its entirety, in a two line conclusion set aside the arbitrator's award as being contrary to law and regulation. /12/ A reading of the Council's decision, indicates without a doubt, that the sole basis for the Council's decision was the requested opinion from the Comptroller General. On September 8, 1980, the Comptroller General in Fort Stewart/Hunter Army Airfield, File B-180095, September 8, 1980, (appearing in the instant record as GC-Exhibit No. 9), reconsidered the matter of recoupment by an agency of erroneously withheld union dues allotments and concluded that an agency was under no obligation to reimburse affected employees for such erroneous union dues allotments in the absence of a showing that the employee or employees involved had either notified the agency that they were no longer in the certified unit or requested that their respective dues allotments be discontinued. The Comptroller's decision is rationalized in pertinent part as follows: Although we must agree that allotments were erroneously withheld in these circumstances, we do not believe that the Government is required to pay over the erroneously withheld allotments to the employees. It is the primary responsibility of an agency to cancel allotments of union dues when an employee is no longer in the bargaining unit, but the employee should not be relieved of the duty to advise the agency promptly if allotments are being improperly withheld. We are particularly constrained to that view because employees may be members of a labor organization whether or not they are members of a bargaining unit covered by a written ; agreement. Therefore, when an employee leaves a unit covered by a bargaining agreement, only the right to have his union dues paid by voluntary allotment ends. His union membership continues until he takes some action to terminate it. If through administrative error the allotment continues to be paid to the union, the employee is presumed to have knowledge of the fact his allotment has continued since in most cases the allotment is shown on Leave and Earnings Statements each pay period. Thus, the employee is or should be aware that his union dues are being paid by allotment, and he is in a position to know that such deductions are improper. In any case the employee does not lose the money in question since it is owed to the union. Further, the union is not being unjustly enriched, since it is entitled to dues from its members. See Matter of Sergeant Richard C. Rushing, USA, B-194692, July 24, 1979, in which it was held that the individual "would not be entitled to a refund (of an allotment) if he had an interest in, or the proceeds from the allotment inured to his benefit." It is our position that, to the extent that the proceeds of the allotments inured to the benefit of the employees in this case in that their union dues were paid, there is no requirement to reimburse the employees. Further, in view of the difficulties which such reimbursements cause, they should not be made unless an individual case presents facts which would justify such action. Since we have determined that the Government is not required to reimburse the employees, there is no need to recoup the money from the union. A similar conclusion, based upon identical considerations, was reached by the U.S. District Court, Northern District of Alabama, Northeastern Division, in AFGE, Local 1858 (AFL-CIO) v. Clifford Alexander, Secretary of the Army, Civil Action No. 78-W-5023-NE, 4/10/78. The District Court enjoined the Army from recouping erroneously withheld union dues and disbursing the recouped monies to two employees who had been promoted out of the certified unit. On the basis of the above conclusions, decisions of the Court and Comptroller General, and the absence of any probative evidence indicating that the erroneously withheld union dues allotments were effected after the non-unit employees involved had requested discontinuance of same, I find that the Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute when, on its own motion, it unilaterally decided to breach Article 35 of the collective bargaining agreement and withhold from current monies due the Union erroneously withheld union dues allotments and subsequently disburse such monies to a number of employees who had either never been in the unit or had subsequently been promoted out of the unit. /13/ In reaching the above finding, I am not unmindful that there currently exists a contrary decision of the Federal Labor Relations Council, the predecessor to the Federal Labor Relations Authority. However, inasmuch as the Council's decision was based solely on a requested opinion from the Comptroller General, who in his wisdom has seen fit to alter his position, it is anticipated that the Comptroller's current position would again be followed. The fact that the Union might have intentionally submitted dues withholding authorizations from employees outside the certified unit does not excuse the Respondent's actions, here found to be violative of the Statute. The Respondent's sole recourse to such alleged action by the Union is the cancellation of such dues withholding. Having authorized the withholding, the employee or employees involved, certainly have no legitimate claim against Respondent for its erroneous action in withholding their respective dues at a time when they were not a member of the certified unit. Similarly, the fact that the Union might not have complied with the educational requirements imposed upon it by the collective bargaining contract is an insufficient basis to condone Respondent's recoupment actions which fly directly in the face of the obligations imposed by both the Statute and the collective bargaining agreement. Having found and concluded that the Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute by virtue of its actions on September 12, 1980 and September 29, 1980, in unilaterally breaching the obligations imposed by both the collective bargaining agreement and the Statute and withholding $2,076 and $829.95, respectively, from current union dues withholding allotments of current unit employees within its possessions and subsequently disbursing such monies to various employees who had in the past been subjected to erroneous union dues withholding, I recommend that the Authority issue the following order designed to effectuate the purposes of the Statute. ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section 2423.29(b)(1), the Authority hereby orders that the Department of the Air Force, Griffiss Air Force Base, Rome, New York, shall: 1. Cease and desist from: (a) Unilaterally breaching its contractual and Statutory obligations by withholding monies from current union dues withholding allotments in its possession and disbursing such monies to employees who had in the past been subjected to erroneous union dues withholding deductions from their respective bi-weekly pay checks. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Labor-Management Relations Statute: (a) Pay to Local 2612, American Federation of Government Employees, AFL-CIO, the sum of $2,905.95, which represents the total amount of money illegally withheld from current union dues withholding allotments of unit employees on September 12 and 29, 1980. (b) Post at Griffiss Air Force Base, Rome, New York, copies of the attached notice marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Base Commander and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Base Commander shall take reasonable steps to insure that such notices are not altered, defaced or covered by any other material. (c) Notify the Federal Labor Relations Authority in writing within 30 days from the date of this Order as to what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the remaining allegations of the complaint, which have been found supra not to be violative of the Statute, be, and hereby are dismissed. BURTON S. STERNBURG Administrative Law Judge Dated: December 9, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally breach our statutory and contractual bargaining obligations by withholding monies from current union dues to withholding allotments in our possession and disbursing such monies to employees who in the past have been subjected to erroneous union dues withholding deductions from their bi-weekly pay checks. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. WE WILL pay to Local 2612, American Federation of Government Employees, AFL-CIO, the sum of $2,905.95, which represents the total amount of money illegally withheld from current union dues withholding allotments of unit employees on September 12 and 29, 1980. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Region 1, whose address is: 441 Stuart Street, Boston, MA 02116, and whose telephone number is: (617) 223-0920. --------------- FOOTNOTES$ --------------- /1/ The General Counsel filed a request to withdraw the complaint on the sole ground that Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 9 FLRA No. 48 (1982), appeal docketed, No. 82-4334 (5th Cir. Sept. 8, 1982), decided subsequent to issuance of the complaint, is dispositive of this case. The Charging Party filed an opposition. The Authority concludes that, at this stage of the proceeding, the purposes and policies of the Statute would be best effectuated by issuing a decision herein. Accordingly, the General Counsel's request to withdraw the complaint is denied. /2/ In the absence of exceptions, the Authority adopts the Judge's conclusion in Case No. 1-CA-384 that the Respondent did not interfere with, restrain or coerce unit employees in violation of section 7116(a)(1) of the Statute by providing the Union with advance notice of its intention to recoup improperly withheld dues authorizations. /3/ Section 7116(a)(1), (5) and (8) of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. /4/ Section 7115(a) provides: Sec. 7115. Allotments to representatives (a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year. /5/ In Case No. 1-CA-588, the Judge did not pass upon the section 7116(a)(1), (5) and (8) allegations, which were based on a similar incident of alleged wrongful withholding of dues allotments from the Union in order to reimburse employees whose pay had been improperly subjected to dues withholding. Rather, he determined that unfair labor practice proceedings were barred by section 7116(d) of the Statute which provides, in pertinent part, that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice . . . but not under both procedures." /6/ In the Fort Bragg case, supra, the affected employee, who was subsequently reimbursed by the agency, was aware of the fact that the dues deductions were being erroneously made but made no effort to correct the matter or resign from the union there involved. While the dues deductions were being made the affected employee enjoyed a number of benefits flowing from his membership in the union. Relying solely on an opinion from the Comptroller General, which in turn relied on an earlier decision of the Comptroller General in Aberdeen Proving Ground, B-180095, October 1, 1974, and Reconsideration of APG, 54 Comp.Gen. 921 (1975), the Federal Labor Relations Council concluded that an arbitrator was wrong in awarding the union the amount of money recouped by the agency from the current bi-weekly dues deductions to be forwarded to the union, and therefore set aside the arbitrators award which had ordered that the recouped funds be returned to the union. /7/ The Union's bargaining proposal read as follows: Consistent with the Comptroller General Decision B-180095 dated September 8, 1980, in the Matter of Recoupment of Union Dues-Fort Stewart/Hunter Army Air Field, the employer will discontinue its practice of recouping union dues allotments and using said collection of funds to reimburse employees for union dues allotments, which were continued after employees were no longer part of the bargaining unit. /8/ Cf. Defense Logistics Agency, 5 FLRA No. 21, wherein the Authority concluded that dues withholding is an integral part of an employee's right to join, form and assist a union. /9/ Cf. United States v. Munsey Trust Company of Washington, D.C., 332 U.S. 234 wherein the Supreme Court upheld the right of the government to effect a set-off which was challengeable in the Court of Claims. /10/ Cf. Consumer Products Safety Commission and AFGE, Local 3705, AFL-CIO, 4 FLRA No. 105. /11/ Section 14(d) of the Complaint alleges that on or about December 8, 1980, "Respondent unilaterally changed existing conditions of employment and/or repudiated its existing collective bargaining agreement by failing to remit to the Union dues withheld from employees pursuant to Article 35 of the Collective Bargaining Agreement". The Grievance dated December 8, 1980, states in pertinent part as follows: "We feel the action of the employer to recoup $554.85 dues from the November 29, 1980, dues check off, violates Article 35 of the Labor Management Agreement. The money recouped does not belong to the Air Force, it belongs to the Union." /12/ As noted in the factual portion of the instant decision, it was this decision of the Federal Labor Relations Council which caused the Agency to review its dues withholding lists for purposes of determining whether the Agency was erroneously withholding union dues from its employees. /13/ Inasmuch as Article 35 is a restatement of Section 7115(a) of the Statute dealing with dues withholding, the unilateral patent contractual breach also constitutes a 7116(a)(8) violation.